Mediation FAQs

These are common frequently asked questions about mediation that often come up. We hope you find the answers we have provided, helpful. If you have questions about mediation that are not included here in this list, please contact us for answers.

Mediation is...
Mediation is a process that
involves a mediator, i.e., a neutral third party who helps the disputing
parties achieve a resolution that satisfies both of them. The mediator's
primary function is to create constructive communication between parties
and provide a forum where disputants can create a mutually satisfactory
agreement. Mediators do not impose decisions; instead, they help people
craft solutions that will work for them.(return to questions)

Mediation vs. Litigation
Mediation creates a supportive and constructive environment that promotes communication and balances power differences. Instead of the adversarial model of most legal arguments,
mediation seeks to close the marriage relationship as amicably as possible, put the past behind and concentrate on the future. Above all, mediation allows divorce or separation to occur with dignity and integrity.

Mediation addresses all legal
issues as required by the court. Yet unlike the traditional legal approach
with opposing attorneys, mediation can reduce emotional and physical
stress, require less time, save money and even create effective ways
to resolve future conflicts, especially around co-parenting.(return to questions)

Mediation Sessions
During each mediation session, the issues important to the parties are discussed and the parties work towards a solution. If there is no pressing issue, the first session includes
gathering information about the parties’ marital estate, what they own and what they owe. Often they do not have all of the information available, so homework is necessary. We have a discussion about child support and spousal maintenance. Intermingled with these discussions
is the discussion about plans for the parenting the children.(return to questions)

Cost of MediationThe parties are charged a $200 hourly rate, which they typically split and which is paid as you go. The average is about $2,000 total, depending on the complexity of the situation. To put this in perspective, usually this amount is less than most attorneys will ask for in a retainer. Our total can be about 1/5 of what you’d pay some attorneys.(return to questions)

Number of Mediation SessionsIt depends on the complexity of the situation, the level of conflict, and whether the parties have children and own a home. But mediation take as few as three sessions or as many as it takes to resolve your issues. The process is driven by the parties.(return to questions)

Mediators RoleThe mediator’s role is to guide all those involved, not to referee or make suggestions or recommendations. Any agreements that are made between the parties should be entirely
of their own making and are written out for all to sign and abide by. (return to questions)

Mediation Participant's RoleYour role as a mediation participant is to negotiate with the other party in good faith. To improve the chances of success, consider the following: * Look at the other party when speaking to them, and acknowledge that you have heard what they have to say. * Listen calmly to the other party, even if you disagree. * Keep your participation professional and cordial. * Show empathy for the other person. * Look for ways to improve communication. * Demonstrate a commitment to fairness and to resolution of the issue.(return to questions)

Number of MediatorsUsually just one mediator works with the parties.Sometimes a co-mediator is brought in if special circumstances arise or if the parties request a co-mediator. In that event,two neutrals will co-mediate. In those cases, the mediators work together to share the responsibilities involved in helping parties resolve their dispute.(return to questions)

Reasons Mediation is PopularMediation has many qualities that make it appealing. In most cases, mediation is: * conciliatory * fair * quick * inexpensive * voluntary * confidential(return to questions)

Circumstances Mediation is not AppropriateMediation
may not be the most appropriate avenue for resolution in all cases. For
example, it may not be appropriate in cases where: * A definitive or authoritative resolution of the matter is required;
* The matter involves or may bear upon significant questions of
Government policy that require additional procedures before a final
resolution may be made; * Maintaining established policies that apply to many people is especially important; * The matter significantly affects persons or groups who are not parties to the process; * A full public record of the proceeding is important;
* or The agency must maintain continuing jurisdiction over the matter
with authority to alter the disposition of the matter in light of
changed circumstances.(return to questions)

Mediation and LawyersMediation does not provide legal advice. Divorce involves substantial rights and responsibilities, many legal technicalities, and affects your well being and your childrens for years into the future. Most divorces are as complicated as the breakup of a business, plus they include the unique issue of dividing the parenting and companionship of the children.

Should I get a lawyer right away?Good
lawyers are helpful, but the legal adversary process can be expensive
and often seeks to solve problems through opposing positions, not
through cooperation. We will want you to have your attorney and maybe
your accountant or financial planner.

We are using mediation to make decisions. Why would I need a lawyer?A lawyer provides several important services that a mediator is prohibited from providing, even if she is a lawyer:

* Legal advice on how the law applies to you. Usually you have legal options or choices on the principles issues, each with pros and cons. Your lawyer can help you to understand your options. * Preparation and filing of the petition (court paper requesting divorce). * Review of the mediated agreement to be sure it meets your needs and the legal requirements.

Some parties consult with their lawyer in between sessions to get on-going advice. Once you have agreed on the final terms of your divorce and the mediation is complete, it is important to have your lawyer review the agreement. Your lawyer can spot legal problems not included in the agreement.(return to questions)

Marriage Failed - Won't Mediation This question comes up when divorcing couples are considering mediation or retaining opposing attorneys. Although mediation sounds much better, they think it will be easier and safer to have an attorney fight for their rights. We see it differently, especially if there are children. Why not use the divorcing process to begin to establish how you will negotiate and resolve conflict going forward? We provide a safe and confidential forum outside the court. We offer ways of helping you figure out ways to do things differently. We offer constructive options.(return to questions)

Mediation and Legal SettlementNot exactly. A mediated settlement after agreement of each party in mediation can end in a Memorandum of Understanding or go directly to a professional to draft the legal documents for filing with the court. Most often one of the parties’ attorneys drafts the legal documents which are then reviewed by the other attorney. If there are any major changes recommended by one attorney, the parties return to mediation to renegotiate. When no further changes are necessary, the parties or their attorneys can file the necessary documents with the court.(return to questions)

Divorce LawsDivorce laws are discretionary when it comes to property settlements and alimony. There are child support guidelines that the court will impose if you can’t agree. In mediation, parents can figure out who will be responsible for what needs of the children that are not covered by the child support guidelines.(return to questions)

Rights of Parents
Will my parenting responsibilities be minimized? Does the one parent automatically have all the rights? Post divorce parenting has more to do with deciding how to share parental responsibilities. We discuss how both parents can take responsibility for their children in a way that works best for both parents. It is important to all children that when there are two parents, that both should participate in their lives.(return to questions)

Custody with Non-Married ParentsOften in cases where the parents were never married and split up, we see one parent who feels protective of the children and suspicious of the other parent’s commitment as a parent. More often, though, both parents want a relationship with the children. Deep down, most parents know it’s important for children to have a relationship with both parents. The parents need to move from “fighting mad” to find “what we can do differently in the future for the sake of the children.”(return to questions)

If there is any problem around parenting, can’t I just have the court settle it?Most divorce decrees require mediation before returning to court. Parties seem more comfortable having control over their dispute and how it is resolved than turning it over to the court system and letting a judge decide what is right for them.(return to questions)

If I leave everything up to the judge, will the order be fair?A judgment may be fair, but you may not be happy with it. We have seen that when both parties have control of their process, both people can be happy with a mediated settlement.(return to questions)

We’re living apart pending a divorce, and the kids are miserable at his/her house. What should I do?When a parent says that the kids dislike going to the other parent’s house, the schedule isn’t working, or that a child isn’t receiving good nutrition, the problem isn’t always removed by getting primary parental rights and responsibilities. We often find that the primary issue is conflict between the parents on matters that have little to do with their children and that in mediation the parties can resolve their problems. We have heard parties say that mediation is often more helpful than going to court.(return to questions)

Problems post-divorce, will the courts decide who is right?All parties to divorces must attempt mediation or some form of dispute resolution before going back to court with a dispute. Judges are very busy, and encourage parties to reach their own agreement.(return to questions)

Easier after DivorceYou likely will never do anything more emotionally difficult than to go through divorce, even in the best of circumstances.(return to questions)

Mediation Settlements CoverThe process facilitated by the mediator will review all the issues you need to address in your final divorce decree such as: * Real and personal property * Division of assets and/or liabilities * Tax considerations * Spousal maintenance * Child support * Living arrangements for the children * Parenting responsibilities(return to questions)

Mediation with Power StrugglesThere are power differences in all couples. Power is very hard to identify. Clients do not know their own power and how it affects the other. Power tends to move from one to the other depending on the issue. Each sees the other as powerful, while seeing themselves as having no power. Equal power is less the issue than how each uses their power. When power is used negatively, it is inherently destructive and the mediator intervenes to change the power to learn what motivates it. The goal of mediation is to empower both clients while seeking a fair solution.(return to questions)

Mediation with Domestic AbuseIn domestic abuse cases, when there is a screening protocol, divorce mediation is more appropriate than lawyer-negotiated divorce or litigation. Conflict is significantly decreased in mediated divorces, when compared to litigated or lawyer-negotiated divorce. Battered women become empowered by the divorce mediation process.(return to questions)

Mediation and RightsTrying mediation typically does not prevent you from pursuing formal grievance or complaint avenues in the event that an agreement is not reached. However, those other avenues may have deadlines that are unaffected by attempts to use mediation. Please contact the ADR Specialist for more information.(return to questions)